Taito Phillip Hans Field v R Ca

• Jurisdiction: New Zealand
• Judge: O'Regan P,Hammond,Stevens JJ
• Judgment Date: 26 November 2010
• Neutral Citation: [2010] NZCA 556
• Docket Number: CA681/2009
• Court: Court of Appeal
• Date: 26 November 2010

Between

Taito Phillip Hans Field

Appellant

and

The Queen

Respondent

[2010] NZCA 556

Court: O'Regan P, Hammond and Stevens JJ

CA681/2009

IN THE COURT OF APPEAL OF NEW ZEALAND

Catchline: Appeal against conviction and sentence — appellant was an MP and was convicted of bribery and corruption under s103(1) Crimes Act 1968 (corruption and bribery as a Member of Parliament) and attempting to pervert the course of justice under s117 Crimes Act 1968 (corrupting juries and witnesses) — sentenced to a total of six years imprisonment — appellant accepted free or low cost labour in return for providing immigration assistance — whether the incorrect legal test for corruption was applied — whether the incorrect test for perverting the course of justice was applied — whether evidence was wrongly admitted — whether the sentence was manifestly excessive.

Counsel:

H A Cull QC and M A Karam for Appellant

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Hammond J)

Table of Contents	Para No
Introduction
The convictions and sentence	[1]
The broad nature of the charges	[4]
Some matters of process	[17]
Parliamentary control of conflicts and gifts	[23]
The grounds of appeal	[28]
The Crown response	[30]
First ground of appeal: the legal test for corruption
The significance of political corruption	[31]
Where is bribery and corruption by members of Parliament to be dealt with?	[34]
The New Zealand statutory scheme	[41]
The concept of a bribe	[46]
The concept of “corruptly”	[49]
A corrupt bargain is required?	[65]
An adequate direction?	[88]
The second ground of appeal: wrong legal test for obstructing/ perverting the course of justice
The legislation	[102]
The convictions	[103]
The Crown case	[104]
The evolution of Mr Field's conduct
(a) Alarm bells	[106]
(b) Ingram inquiry	[108]
(c) Police investigation	[119]
Summary	[123]
The appeal points	[124]
The legal principle(s)	[127]
The factual context	[137]
Conclusion	[141]
The third ground of appeal: wrongful admission of evidence
Introduction	[143]
The appropriate principle	[145]
(a) Assistance to Mr Field	[150]
(b) Mr Field's interviews with Dr Ingram QC were voluntary	[151]
(c) Mr Field's “status” during the interview	[152]
(d) The Evidence Act 2006	[153]
(e) The distinction between the Ingram inquiry transcript and thereport itself	[154]
(f) Entrapment or unfairness	[157]
(g) No improper editing of the transcript	[158]
(h) No oppression	[160]
(i) Rule 3 of the Practice Note	[161]
Conclusion	[162]
The fourth ground of appeal: miscarriage of justice	[163]
The evidence of Banleng Prachanan	[165]
Tiling at Afiamalu	[171]
The sentence appeal
The sentence imposed	[177]
First ground of sentence appeal	[178]
Second ground of sentence appeal	[182]
Attempt to pervert the course of justice offences	[186]
Third ground of sentence appeal	[191]
Result	[193]
Conclusion	[194]

Introduction

The convictions and sentence

1 The appellant, Taito Phillip Hans Field, was first elected as a Member of Parliament in 1993. He remained a Member of Parliament until 2008. In 2003 he was appointed Associate Minister of Pacific Island Affairs, Associate Minister of Social Development and Employment, and Associate Minister of Justice. He held those positions until the 2005 general elections.

2 Mr Field became embroiled in certain matters that eventually led to criminal prosecutions against him. After a trial of more than three months, he was convicted by a jury presided over by Rodney Hansen J of 11 counts of bribery and corruption as a Member of Parliament. These charges were laid under s 103(1) of the Crimes Act 1961. Mr Field was also convicted on 15 counts of attempting to pervert the course of justice under s 117 of the Crimes Act.

3 On 6 October 2009, Mr Field was sentenced to four years imprisonment on the s 103 charges and two years imprisonment on the s 117 charges. 1 These sentences were to be served cumulatively. The effective sentence was one of six years imprisonment. Mr Field is still therefore a serving prisoner.

The broad nature of the charges

4 The thrust of the Crown allegations in relation to the bribery and corruption counts was that between September 2003 and late 2005, Mr Field, having provided or, in some cases, while providing, immigration assistance to various Thai people who had approached him, accepted free or low cost labour from them in the form of plastering, painting, or tiling, on certain of his properties. The essence of the wrong alleged was that Mr Field received a benefit for something that he was elected and paid to do as a Member of Parliament; and that what he did was caught by the provisions of s 103 of the Crimes Act. We deal with that section in full, later in this judgment. At heart, this is an “unlawful reward” case.

5 For introductory purposes it is sufficient to note that the trial Judge directed the jury that the receipt of rewards is an offence under s 103(1) if the reward had been accepted “corruptly”. In the circumstances of this case this required that Mr Field knew that the work on his properties had been done in order to influence or reward him for the immigration assistance he had provided.

6 The total value of work done for Mr Field in New Zealand and Samoa was estimated to be in the tens of thousands of dollars. Although the exact value of the work done was disputed, the benefit to Mr Field was on any view substantial.

7 As to the perverting the course of justice charges, media allegations were made in late 2005 in relation to some of the conduct that eventually gave rise to the s 103 charges. Specifically, the media allegations were that Mr Field had interceded with the then Associate Minister of Immigration, the Hon Damien O'Connor, on behalf of Thai immigrants to New Zealand in return for the immigrants completing work on properties owned by Mr Field or his family in New Zealand; and on one property at Afiamalu, Samoa owned by Mr Field.

8 The Prime Minister at the time, the Rt Hon Helen Clark, appointed Dr Noel Ingram QC to investigate these claims (the Ingram inquiry). Dr Ingram was assisted by Mr Kayes. This was a ministerial inquiry but it was not conducted under the aegis of any statutory power. Under its terms of reference, the Ingram inquiry was to investigate and determine: the nature of Mr Field's relationship with a Thai person, Sunan Siriwan, and his wife, and the extent of any involvement Mr Field may have had in applications for work permits for them; whether any conflict of interest existed concerning Mr Field's involvement in those matters; and identify any other matters necessary to provide a complete report. In conducting the inquiry, Dr Ingram did not have the power to compel witnesses and evidence was not given under oath.

9 From the preamble to the terms of reference of the Ingram inquiry it appears that the Prime Minister's concern was to uphold the principle that Ministers were required to avoid conflicts between their private interests and the use of their influence as Ministers. 2 That is, it was not set up as an inquiry into criminal conduct.

10 Concurrently with that inquiry, the police had independently received information relating to the media allegations, and had begun to investigate them. Some of the information received by the police was forwarded to Dr Ingram. Mr Field was informed of the initial police activity in June 2006 when parts of that file were disclosed to him. Formal police inquiries were not commenced until after Dr Ingram had released his report.

11 Dr Ingram reported to the Prime Minister in July 2006. 3 He noted the difficulties for his inquiry owing to its inability to compel witnesses or to require the production of documentary evidence. He felt unable to resolve conclusively some issues. He did however conclude that Mr Siriwan had performed extensive tiling work on Mr Field's property in Samoa for no remuneration. He found that Mr Field had made personal representations to the Associate Minister of Immigration on behalf of Mr Siriwan, writing letters to him and meeting with him twice with respect to that matter.

12 Dr Ingram concluded however that there was no conflict of interest in the sense contemplated by the preamble to the terms of reference. That was on the bases that Mr Field had not told Mr Siriwan he could influence Mr O'Connor; that there was no evidence that Mr Siriwan was motivated by Mr Field's official position; and that Mr O'Connor did not afford Mr Siriwan any preferential treatment.

13 As to other matters, Dr Ingram found that Mr Field did not inform Mr O'Connor of Mr Siriwan's work on the house in Samoa and that Mr Field took no steps to ensure, once he became aware of the potential for conflict, that Mr Siriwan either stopped his work or was remunerated.

14 Dr Ingram also raised concerns about other Thai nationals working on Mr Field's Samoan property, as well as yet more Thai nationals working on New Zealand properties, providing plastering and painting services. All apparently received from Mr Field's assistance in immigration matters.

15 The essence of the Crown's case on the perverting the course of justice charges was that once concerns were raised – in particular as to Mr Siriwan's position – Mr Field began making and procuring the making of statements and documents for the Ingram inquiry, with the intention of deflecting any possible consequences against himself. And further, once the police inquiry became known, it was alleged Mr Field procured...